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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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Old 06-15-2010, 10:36 PM
BOBX57 BOBX57 is offline
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Hi

Me and my fiance have recently split. We had been together for 8 years and bought a condo and lived in it together for almost 2.

The condo is all in his name.

We are putting together a separation agreement and I think most of our possessions will be sorted out amicably enough.

My main cause of concern is the condo. He wants to sell it and I don't.

The reason I don't is that right now, we will definitely lose money on the condo - guaranteed. It is only being listed for what we owe on the mortgage, so taking into the fact that we won't get the asking price and fees on top it is an obvious loss of money.

I think that either he should stay in it (I have moved out already) and continue paying the mortgage, he should get a renter in to help with the mortgage or he moves out and we get renters in. This way we can keep the condo until the housing market rises.

My questions are basically this:

If my name is not on the mortgage am I liable for half of the debt if the house sells?
If I am liable, then do I get a say in whether we sell the house or not?
If I am not liable then can he sue me for half of the debt (which is what he is threatening to do)?

If he does decide to not sell and rents it out and sells it in the future I do not want any profits - he can keep it all.

Any advice would be greatly appreciated

Thanks
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Old 06-15-2010, 10:42 PM
NotSoNiceEx NotSoNiceEx is offline
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You were never married and as you stated you are not on title or the mortgage, you have already moved. What can he sue you for? Your debt remains your debt, his debt remains his. If on the other hand you contributed to the down payment and wanted value out of the home for that you would have an arguement. As you said you do not want any profit from the sale. Do you have any children together? This would open a whole different set of questions and solutions. If not he is full of hot air, let him do his best.
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Old 06-15-2010, 10:54 PM
Mess Mess is offline
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There is no matrimonial home in a common relationship. It only exists if you become legally married.

Any interest you may have in the home is essentially as a business partner. Did you invest anything into the condo? Put something toward the downpayment? Pay the condo fees for the two years? For a condo there tends to be less possibility of a constructive trust (meaning you put money or work into something that was otherwise solely his) because the maintainence is covered in the fees and usually you aren't allowed to do major reno's yourself, so what would you invest in it? Meanwhile, there is a possibility of implied trust if he was clear to you that the condo would be shared property when you were married.

The split of the asset has to be done as of separation date. You can't wait 5 years for the value to go up and then claim half of the asset then, if you didn't invest anything in it in the first place.

The condo has no net value at this point in time so there is nothing to split. If you want to try to argue half ownership based on an implied trust due to your intent to marry, you have an argument there. But there is still nothing to split, and yes, you would end up liable for half the loss. Note, the loss from the sale, not the net debt. I'm guessing maybe $10k or in that neighbourhood.

Meanwhile the condo is in his name and unless/until you are able show enough reason in court to award you half the title, you have no say in it's disposition.

Renting out a condo sounds like a great idea until you are actually a landlord and you are dealing with tenants who are trashing the place, partying all night and not paying their rent. It can take months to find someone reliable to move in who will pay on time, or you can get lucky right away. But there are no guarentees and it is still a job to be a landlord, no matter how simple and easy it seems to you. And you won't be the one doing it.
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Old 06-15-2010, 11:59 PM
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If the situation was reversed and there would be money gained from the sale of the condo, would you be asking/expecting half of it? I don't think you can force him to stay in it and carry the debt if it is entirely in his name, you already said you don't want any money from the sale of it so your intention is what - to do HIM a favour by not selling right now?
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Old 06-16-2010, 07:24 AM
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if you do not want him to sell it then buy it yourself. I think he tried to say you are liable for half the debt because you telling him that you do not want him to sell.

Look at it this way, what would you have paid in rent for a place? What did you contribute to the mortgage? To me just walk away and let him deal with the place and count your lucky stars that you realized it wasn't working before you got married (then you would be responsible for half of all debts) and had kids.
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Old 06-16-2010, 07:26 AM
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Please read the Family Law Act of Ontario that will answer most of your questions. It is fairly short and easy to read.

Family Law Act, R.S.O. 1990, c. F.3

This Act has a specific section for common-law.

Also, please read "Common Law in Ontario" at this link:

http://www.attorneygeneral.jus.gov.o...y/familyla.pdf
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Old 06-17-2010, 07:04 AM
Max22258 Max22258 is offline
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I just went thru that and the condo legally is not yours. You are not liable for either losses or gain thru a sale.
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Old 06-17-2010, 08:31 AM
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Quote:
Originally Posted by Max22258 View Post
I just went thru that and the condo legally is not yours. You are not liable for either losses or gain thru a sale.
You should google constructive and resulting trusts.
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Old 06-17-2010, 06:53 PM
Max22258 Max22258 is offline
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I know all about constructive trust, you have top prove that you have a reason for this. On my side my ex never paid for anything and it was up to her to prove that she actually help in raising the value of my property which she failed to do. Meanwhile the judge did in fact told her to move out of my house. The reason behind this is that she does not own the house and even if she could have prove that she help raise the value of the house, it did not belong to her anyway. So the only thing here is monetary and not ownership of the property. she is not liable as it is in his name only, the dbt belong to the person that has them, as well as anything that was bought if you have a receipt in your name it is yours.
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